Shaw v DPP

Factual and Procedural Background

The Appellant was convicted at the Central Criminal Court on 21 September 1960 of three offences:

• Conspiracy to corrupt public morals.
• Knowingly living in whole or in part on the earnings of prostitution, contrary to section 30 of the Sexual Offences Act 1956.
• Publishing an obscene publication, contrary to section 2 of the Obscene Publications Act 1959.

The convictions arose from the Appellant’s publication of a booklet entitled “Ladies Directory.” The booklet, produced between October 1959 and July 1960, listed prostitutes’ names, addresses, photographs and coded indications of services—including so-called “perverse practices.” Prostitutes paid advertising fees ranging from two to ten guineas per entry, and copies of the booklet were sold through kiosks for two shillings each, generating substantial profits for the Appellant.

The Court of Criminal Appeal dismissed the Appellant’s appeal but certified two points of law of general public importance on the first and second counts and granted leave to appeal to the House of Lords. Leave was refused on the third count. The present opinion resolves the appeals on counts 1 and 2.

Legal Issues Presented

1. Whether, on the proper construction of section 30 of the Sexual Offences Act 1956, the Appellant “lived wholly or in part on the earnings of prostitution.”
2. Whether a common-law offence of “conspiracy to corrupt public morals” exists, and, if so, whether the Appellant’s agreement to publish the “Ladies Directory” fell within that offence.
3. Whether section 2(4) of the Obscene Publications Act 1959 bars a prosecution for conspiracy to corrupt public morals where the alleged agreement involves publication.
4. Whether the trial judge’s directions on the meaning of “debauch and corrupt” were adequate.

Arguments of the Parties

Appellant’s Arguments

• The phrase “lives … on the earnings of prostitution” should be confined to parasitic associates such as pimps or bullies; payment for legitimate services (advertising) does not come within section 30.
• No common-law offence of conspiracy to corrupt public morals exists; to recognise one would create uncertainty and improperly enlarge the criminal law.
• Even if such an offence existed, section 2(4) of the Obscene Publications Act 1959 prevents prosecution because publication is “of the essence” of the alleged conspiracy.
• The trial judge mis-directed the jury by diluting the words “debauch and corrupt” to “lead astray morally.”

Respondent’s (Director of Public Prosecutions) Arguments

• Section 30 covers anyone who knowingly receives money derived from prostitution for services supplied solely because the recipients are prostitutes; the Appellant’s advertising service was inseparable from their prostitution.
• The common law has long recognised an indictable conspiracy to corrupt public morals; the courts retain a residual duty as custodes morum to protect moral welfare.
• Section 2(4) of the 1959 Act is inapplicable because the gravamen is the agreement to corrupt morals, not publication per se.
• The judge correctly left the meaning of “debauch and corrupt” to the jury, consistent with the approach in obscenity cases.

Table of Precedents Cited

Court's Reasoning and Analysis

Count 2 – Living on the Earnings of Prostitution

Judge Simonds (majority) held that section 30 targets those who make their livelihood from services peculiarly connected with prostitution. A provider is caught if he would not supply the service but for the fact that the customers are prostitutes. Advertising prostitutes for reward is “of its nature referable to prostitution,” making the Appellant a joint adventurer in their trade. Judge Reid agreed in the result but adopted a narrower test: the defendant must live “parasitically,” a description that still fitted the Appellant because his occupation would not exist without prostitutes’ custom.

Count 1 – Conspiracy to Corrupt Public Morals

The majority (Judges Simonds, Tucker, Morris and Hodson) affirmed the existence of a common-law misdemeanour of conspiring to corrupt public morals. They reasoned that:

• The common law retains a “residual power” to safeguard moral welfare where Parliament has not legislated.
• Historical authorities—especially Delaval’s Case—confirm the jurisdiction of courts as custodes morum.
• The Appellant’s agreement with advertisers to solicit customers for both ordinary prostitution and perverse practices was plainly calculated to corrupt morals and thus indictable.
• Section 2(4) of the 1959 Act does not bar such a prosecution because the essence of the offence is the conspiracy, not publication alone.

Judge Reid dissented on this count. He disputed the existence of any general crime of conspiracy to corrupt public morals, warning that such elasticity would undermine certainty in criminal law. Nonetheless, he accepted that public invitations to sexual perversion might constitute a distinct offence of outraging public decency.

Alleged Judicial Misdirection

The majority found no misdirection. Leaving the meaning of “debauch and corrupt” to the jury mirrored the established approach in obscenity cases, and the jury could use their collective sense of public morality.

Holding and Implications

APPEAL DISMISSED. The convictions on both counts were affirmed.

Direct Implications: the Appellant’s sentences remain in force, and the “Ladies Directory” enterprise is criminalised.

Broader Implications: the House of Lords confirmed that (a) section 30 of the Sexual Offences Act 1956 encompasses commercial services aimed exclusively at facilitating prostitution, and (b) a common-law offence of conspiracy to corrupt public morals exists, allowing courts to address novel forms of moral wrongdoing absent specific statutory provision. While the decision reinforces judicial power as custodes morum, the dissent highlights ongoing tension between judicial creativity and legal certainty.